by Michael Boldin

Famed legal theorist Randy Barnett has quite an interesting article up in the Wall Street Journal entitled, “The Case for a Federalism Amendment.” In it, he proposes a Constitutional Amendment as a way to stop the federal government from exercising powers beyond that which it is authorized to do by the Constitution.

He begins by writing:

In response to an unprecedented expansion of federal power, citizens have held hundreds of “tea party” rallies around the country, and various states are considering “sovereignty resolutions” invoking the Constitution’s Ninth and Tenth Amendments. For example, Michigan’s proposal urges “the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.”

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

While calls for federalism and anything else that could reduce the size and scope of federal power are good, his proposed way to achieve this has a greater chance of destroying federalism even further, rather than doing anything to achieve it.

First of all, Barnett’s proposed amendment:

Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.

Most troubling in this proposed amendment is Section 5 – which is where this amendment turns towards a destruction of federalism, rather than a guarantor of it, by giving the federal courts even greater power to intervene in the affairs of the states.

Here’s how Kurt T. Lash, James P Bradley Chair of Constitutional Law at Loyola Law School and author of The Lost History of the Ninth Amendment, puts it:

“I agree with Professor Barnett that much of his proposed Amendment reflects principles of federalism which the Founders believed they had engrafted into the text of the Constitution.  However, I think that Section 5 of the proposed Amendment threatens to transform this “federalism” amendment into a provision which would result in the destruction of federalism.

Section 5 appears to grant courts constitutional authority to invalidate any state matter which a court perceives to be a liberty interest.

Indeed, since the amendment is to be interpreted according to today’s public meaning, Section 5 opens the door to judicial invalidation of any number of state regulations which traditionally have been left to the states, but which an individual judge or justice believes “today” should be considered a matter of individual liberty.”

Legislating from the bench on steroids, anyone?  Thanks, but no thanks.

Noted Constitutional scholar, and best-selling author of “The Politically-Incorrect Guide to the Constitution” Kevin R.C. Gutzman weighs in on Section 5 as well:

“In explaining his proposal, [Barnett] calls this section “entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.”

This is a blatant falsehood.

James Madison proposed an amendment in the First Congress to empower the federal courts to enforce certain (not, as in Barnett’s case, all) individual liberties against the states.

His amendment not only was never ratified, but it was not even sent to the states by Congress.

Barnett has long been on record as an advocate of the Incorporation Doctrine, the Supreme Court’s historically unfounded justification for enforcing certain of its favorite rights against state governments despite the absence of any constitutional ground for doing so.

With the language cited above, Barnett proposes to legitimate this practice.

Like James Madison, then, Barnett is attempting to use the language of federalism to grant the Federal Government new power.

While the idea of following up the tea parties and the Tenth Amendment resolutions with a constitutional amendment has merit, then, Barnett’s specific proposal can in this area only make things worse.”

Worse, indeed.

If the problem here is too much power, how can giving even broader power be the solution?

Some do agree, though, that a constitutional amendment is the way to go.  So why not focus on amendment(s) that would actually limit the size and scope of federal power?

For example, in a post at Electric City Weblog, Professor Robert Natelson, an expert on the framing and adoption of the United States Constitution, recommends the following:

We need to discuss the content of such amendments, but to start the discussion, I’ve suggested amendments to require a balanced federal budget and to impose term limits on Congress – ideas that people are very familiar with, generally like, and that state lawmakers are have shown themselves willing to vote for…

Requiring a balanced budget and kicking people out of office after a specified number of terms do not together make a silver bullet, but they are, undoubtedly, direct limits on the power of the federal government.

As far as amendments go, that makes sense.

But what else can be done to, as Thomas Jefferson put it, bind the government down by the chains of the Constitution?

One word:  Nullification.

Null-i-fi-what?

While not common parlance, the doctrine of nullification has a long history in the American tradition.  It’s the legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional.

This theory has been around since the earliest days of the Republic.  For example, in response to the Alien and Sedition Acts, an anonymous Thomas Jefferson penned what became known as the Kentucky Resolutions of 1798.  These resolutions not only spelled out just what was wrong with the acts, but what the states’ proper and rightful response should be: nullification.  James Madison penned a very similar resolution that was approved by the Virginia Legislature that same year.

Here are some of the Jefferson’s most powerful words:

Resolved, that the several States composing the United States of America, are not united on the principles of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each State to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force…

1798 is far from the only time nullification has been invoked in American history.  For example, South Carolina’s bold nullification of tariffs in 1832, against nearly the entire American establishment, is usually called a failure. But it accomplished its main purpose: to bring down the rate of taxation.

Ok, you might be thinking, that sure sounds great and all, but wasn’t this whole nullification and resisting thing decided by the civil war?

Fast forward to 2007, and you’ll see an effective, practical example of just how well nullification works.

That year, the Maine Legislature overwhelmingly passed a non-binding resolution that refused implementation of the Real ID Act, and demanded that Congress repeal the law.  Shortly after, Utah did so as well, and soon, other states began to follow suit.

What happened?  The feds backed down.

The original deadline for implementation was delayed from May, 2008 to December, 2009.  As more states got on board and resisted through non-binding resolutions, the feds backed down again by extending the deadline to 2011.

What does this tell us?  Nullification works.  While the final nail hasn’t been put in the Real ID coffin yet, we have a great example of getting the federal government to back down through refusals to comply.

Regarding nullification, historian Thomas E. Woods may have said it best:

“The main point that nullification aims to address is that a government allowed to determine the scope of its own powers cannot remain limited for long. This is a lesson we should have learned by now. Moreover, since piecemeal solutions to reducing federal power have accomplished nothing, we can hardly afford to dismiss out of hand the idea of nullification, a remedy that is at once creative and intelligent, and recommended by some of the greatest political thinkers in American history.”

That, and not amendments expanding judicial power, should be our road-map for the future.